Opinion
854 KA 17–00295
07-06-2018
The PEOPLE of the State of New York, Respondent, v. Norman R. QUIGLEY, Defendant–Appellant.
JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (ROBERT TUCKER OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (ROBERT TUCKER OF COUNSEL), FOR DEFENDANT–APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that County Court abused its discretion in denying his application for a downward departure from his presumptive risk level. Even assuming, arguendo, that defendant preserved the contention raised on appeal for our review by seeking a downward departure on different grounds before the trial court, we conclude that it lacks merit. Here, defendant "failed to establish his entitlement to a downward departure from his presumptive risk level inasmuch as he failed to establish the existence of a mitigating factor by the requisite preponderance of the evidence" ( People v. Nilsen, 148 A.D.3d 1688, 1689, 50 N.Y.S.3d 199 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2468575 [2017] ; see People v. Puff, 151 A.D.3d 1965, 1966, 57 N.Y.S.3d 864 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 2017 WL 4782708 [2017] ).